University of Baltimore School of Law's Center for International and Comparative Law Fellows discuss international and comparative legal issues

The Drones are Coming, the Drones are Coming…

A man drives his beat up old Toyota truck down a dirt road meandering through sparse terrain. Unbeknownst to him, his every move is being watched. For a brief, almost imperceptibly, short moment he hears a loud noise. A flash! And just like that, the man is instantly dead. His body is disintegrated amidst the rubble that was his truck. A missile fired from an unseen unmanned aerial vehicle (UAV or “drone”) has eliminated its target with ruthless efficiency. The strike is the successful culmination of countless hours spent finding the man, confirming his identity, confirming his affiliation, analyzing his movements, considering the legality of a strike, and finally identifying an opportunity that minimizes non-combatant casualties.

This scene or something like it has played out numerous times during America’s post 9/11 “War on Terror.” Drones target terrorist combatants in places like Afghanistan, Pakistan, Somalia, and Yemen (where just last week an American drone strike reportedly killed senior al-Qaida in the Arabian Peninsula (AQAP) leader Harith bin Ghazi al-Nadhari[i]).

The drone program has been effective. According to some unconfirmed reports, drone strikes have killed as many as 2,000 combatant terrorists in Pakistan alone and the frequency of strikes has increased dramatically since President Obama entered office.[ii] The drone has become a proven weapon in the ongoing fight against global terrorism. The US government has asserted that the strikes are legal under international law because they are carried out in self-defense against persons who present a continuing imminent threat and are affiliated with al-Qaida and associated forces with which the US is at war. The US further asserts that the strikes are in accordance with the Geneva Convention because the drone’s advanced technology, most notably its precision, minimizes civilian casualties and collateral damage.[iii]

The UN has criticized the US position as being based on too broad a definition of “imminence,” which must exist in order for self-defense to be legally justified.[iv] The UN critique exposes a potential problem the US has created by setting this precedent. Other nations, perhaps as many as 87 of them, are quickly building or already have their own drone fleets.[v] What will happen when these nations’ drone technology catches up to that of the US? What if those nations are hostile toward the US or its allies? Will they rely on the US understanding of self-defense to likewise justify anonymous killings of persons located outside their territory?

Consider the Chinese, whose drone capabilities are rapidly catching up to those of the United States.[vi]China could easily apply the American legal argument to justify killing someone they claimed to be a Uighur separatist located in Kazakhstan, for example. What about an ethnic Uighur who happens to be a United States citizen? Could China use the American self-defense argument to justify killing this American? It would appear so as long as China deemed the American to be associated with a fighting force that China is engaged in armed conflict with. Take the logic a few steps further and it quickly becomes clear that any country could feasibly kill persons located abroad using drones by stretching the self-defense argument to suit the needs of the day.

The hypotheticals above are not far fetched. The drones are coming. The drones are coming and currently there is no formalized body of international law to regulate them beyond the general laws of war. We have the American precedent to go on but not much else.

An international treaty governing the use of combat drones could alleviate concerns of widespread death from above. The drones do not represent the first time that technology has evolved faster than international law. At one time for example, the US was the only nation with nuclear weapons. As other nations gained the same technology, the nuclear-armed nations were able to form international treaties to regulate their use. Even enemies came to the table in the interest of humanity. So far the regulations have, thankfully, worked, at least in the sense that humans have not wiped themselves off the Earth yet. Perhaps a similar spirit of cooperation can inspire international regulation of drone warfare, although success could be difficult to come by given the high number of nations with drones.

The drones are coming. When they do, where will the battlefield be? Who will be targeted in self-defense? Can international law find a way to regulate the situation before it gets out of control? Time will tell. In the meantime, keep your eye on the sky. The drones are coming.

Matthew Matechik is an Evening J.D. student at the University of Baltimore School of Law (Class of 2016). He currently works full-time for the U.S. Federal Government as a Counterterrorism Analyst. He has a Bachelors of Arts (Magna Cum Laude, 2008) from Florida State University. All views in this blog post are Matthew’s own views and do not represent that of the U.S. Government.

Excellent question. The current laws of war do cover the use of drones. In terms of legal responsibilities, the rules governing the use of a UAV are the same as those governing a manned aircraft. The US asserts that this sort of UAV use complies with international laws of war because the US is acting in self-defense against terrorist organizations.

My concern, however, is that with so many nations acquiring drones, at some point in the near future some actor hostile to the US will be able to use the American legal argument to plausibly justify attacking US interests. The use of drones has proven to be a highly effective counterterrorism measure for us but what will happen when the next actor starts using drones in some sort of novel form self-defense?

My concern is not that drones are exempted from the current laws of war; it’s that we’re shaping the current laws of war with regards to drones in a manner that could soon come back to haunt us. International regulation specific to drones might be able to prevent a potential future of reckless use more so than the big umbrella laws of war can.

I have to agree with you-I am concerned about the short and medium term future as it relates to drones and our partners, and foes, using them. The international community has not been quick to respond in a way that is insightful or meaningful. While I see drones as an effective tool for the U.S. pursue our security interests (as you colorfully portrayed above), I worry that while we may win that battle, we may lose the War of Public Relations in these countries by those whom we are NOT targeting.

I think the potential scenario (also portrayed above) of a less-than-friendly nation using drone technology to continue to suppress it’s own people is a very real threat. I believe that given the capability, drone technology could be used in countries like China, Russia and Venezuela to target dissidents, peaceful or not. The tale of the drone is not settled but constantly in flux.

Matt, how do you imagine that the international community can find a consensus on drone technology? Is this possible? Will this be an elite club, much like nuclear weapons are today? Will the U.S. have to lead this effort or a body such as the UN or NATO? Is there a desire by our congressional or executive leadership to have some rules written out? Your insight would be greatly appreciated. Thank you.

Thank you for the interest and your questions. I can tell from your comment that you too have a passion for international law and international relations. Questions like these certainly illustrate that we live in interesting times.

Yes, it is possible that the international community can find a consensus on military drone technology. However, I do admit that agreeing on a standard will prove extremely difficult. There are many variables at play that complicate any potential treaty. Most notably is the fact that other countries will want to follow the US precedent and, let’s be honest, the US does not want them to.

In my opinion, an “elite club” would have to undertake attempts at regulation. There are two many nations who already have drones or are obtaining drones with too many dissident interests to make anything work “out of the box.” Especially considering that some of these nations might be more inclined to follow the US precedent as is. And why not from their perspective! Perhaps the nations leading drone technology- the US, the UK China, Russia, Israel, maybe others could formulate initial attempts at regulation. These are nations who could benefit from a sort of “I won’t if you won’t” approach. Hopefully, other nations would find it in their interest to sign on eventually.

I think the most significant barrier to any regulation is dealing with the current state of irregular warfare that the world finds itself in. The US is not going to give up this battlefield tactic because it has been effective. The UN, however, does not seem to believe that targeted drone killings are occurring on any sort of “battlefield” in the legal sense. This is why, for example, the UN has labeled US drone use as extrajudicial executions and criticized them as such. The international community will have to sort out what “war” is first.

It’s complicated for sure. Perhaps international agreement cannot be reached and this is simply one of those areas where “real power” trumps international law, despite the best intentions. As more nations start using drones in significant ways, let’s watch the skies and the news to see what happens next.

In response to your question about whether American congressional or executive leadership want some rules written out, the answer is yes. There has been substantial criticism from both parties in Congress about the secret nature of the drone program. The criticism seems to be more concerned with whether the President believes he has legal authority to kill enemy combatants who also happen to be US citizens abroad using drones and less to do with what international regulation might look like.